Opinion issued December 6, 2007
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-00316-CR; 01-06-317-CR;
01-06-00318-CR; & 01-06-00319-CR
ROLAND RAMOS MACIAS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 49, 211
MEMORANDUM OPINION
After finding appellant Rolando Ramos Macias guilty as charged on three counts of aggravated robbery and one count of possession of a prohibited weapon, the jury assessed a sentence of two years and six months’ imprisonment for possession of a
prohibited weapon; ten years’ imprisonment, suspended for ten years’ community supervision, for each of the three aggravated robbery counts; and a $2,500 fine for each of the four counts. Tex. Penal Code Ann. §§ 29.03 & 46.05(a)(3) (Vernon 1994). In this appeal, Macias contends that: (1) the trial court abused its discretion by denying his motion for mistrial following the prosecutor’s impermissible attempt to impeach Macias with his post-arrest silence; (2) the trial court abused its discretion in denying his motion for continuance; and (3) the evidence is factually insufficient to support conviction on the three aggravated robbery counts. Finding no error, we affirm.
Background
One evening in March 2005, Macias and Miguel Salas left work and began riding around in Salas’s van drinking beer. Salas telephoned his ex-wife, Lillian Jaramillo, several times during the evening, threatening her that, among other things, he was coming to her house.
Lillian divorced Salas in 2002. Since 2005, she had resided in a rental home in a Pearland subdivision with her husband, Urvano Jaramillo, as well as her two sons and daughter from her first marriage. Macias had never lived at that house.
During the evening, Salas drove to a mechanic shop where he and Macias left the van and got into a large sedan. Salas drove it to Lillian’s house. They reached the house late that evening, after riding around for several hours.
Close to midnight that night, Lillian heard noises and looked outside. She saw the sedan in front of the house with the doors open. She also saw two men coming from the shed in the back yard. One was carrying two tire rims, and the other, whom she recognized as Salas, had another rim and some tools. Lillian woke Urvano, and they ran out of the house and confronted Macias and Salas. Macias and Salas ignored the Jaramillos’ demands that they explain what they were doing and continued putting the rims and tools in the back of the sedan. Macias also removed tools and equipment from Urvano’s truck, which was standing in the driveway, and put them in the car. Meanwhile, Urvano, who had a heart condition, began experiencing chest pains. At Lillian’s direction, he returned to the house and told Lillian’s twenty-year-old son, Kenny, to go outside with his mother.
Both of Lillian’s sons came out of the house. Kenny went immediately to the sedan and began removing the tools and other things. Macias then pulled a shotgun out of the sedan and brandished it, warning everyone to get back, but Kenny continued to remove items from the car. Macias cocked the gun and threatened them again to “get back or I’ll blow you the f**k away.” At this point, Lillian and her sons retreated, but Macias continued to point the shotgun at them.
Afraid that Macias would shoot, Lillian quietly instructed her eleven-year-old daughter, who was standing by the front door of the house, to call 911. Then, after noticing that Salas and Macias were preoccupied with urinating near the sidewalk, Lillian began walking backwards toward the house. When she reached the house, she got the phone and spoke with the 911 dispatcher. While Lillian was on the phone, Salas and Macias got into the sedan and left. Lillian’s sons got into Urvano’s truck and tried to follow the sedan. Approximately ten minutes later, the police located Salas and Macias in the car at a nearby gas station, took them into custody, and notified the Jaramillos. At the officers’ request, the Jaramillos went to the gas station to assist in the investigation. They also recovered the property Salas and Macias had stolen.
Following his arrest, Macias was indicted on three counts of aggravated robbery with a deadly weapon, each relating to his actions toward Lillian, Urvano, and Kenny, respectively, and one count of possession of a short-barreled firearm. Before trial, in March 2006, Macias moved to consolidate his case with Salas’s, claiming that, although Salas’s testimony was essential to preserve Macias’s right to a fair trial, Salas’s attorney would not allow him to testify in Macias’s proceeding. Macias further requested that his trial be continued to permit him to gather recently discovered evidence. An affidavit executed by Salas accompanied Macias’s motion. In it, Salas averred that believed that the property he took out of the Jaramillos’ shed was his own, and that he asked Macias to get the gun from the car because he was scared that Urvano and Kenny were going to kill him. The trial court denied both requests, and Macias’s case proceeded to trial.
At trial, the complainants all testified to essentially the same version of facts. Macias testified in his own defense. During his direct examination, Macias explained that he was getting a ride home after work from Salas when Salas mentioned that he “was going to his wife’s house to pick up something.” According to Macias, Salas approached the door of the house and knocked, but received no answer. Macias testified he saw Salas go to the backyard and retrieve some tire rims and a weed eater. Macias stated that he thought that Salas owned those items. He also testified that he brought out the gun only at Salas’s direction, after Lillian’s elder son had threatened to kill Salas. Macias denied cocking the gun, denied saying anything more than “back off” to the Jaramillos, denied having any beer that night, and denied urinating by the sidewalk.
Discussion
I. Rulings on Motions for Mistrial and Continuance
A. Standard of review
We review the trial court’s rulings on both the motion for mistrial and the motion for continuance for an abuse of discretion. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006) (continuance); Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004) (mistrial); see Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006) (sufficiency of a motion for continuance shall be addressed to “sound discretion” of court and “shall not be granted as matter of right”). To constitute an abuse of discretion, the trial court’s decision must fall outside the zone of reasonable disagreement. See Gallo v. State, No. AP-74900, 2007 WL 2781276, at *3 (Tex. Crim. App. Sept. 26, 2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
B. Motion for mistrial
In his first issue, Macias asserts that the trial court abused its discretion by denying his motion for mistrial, which defense counsel sought during the State’s redirect examination of the police officer who investigated the incident. During the State’s direct examination of the investigating officer, the officer testified that, after Macias was in custody and had received his Miranda warnings, Macias voluntarily conversed with the officer about the incident. In detailing that conversation, the officer recounted that, after Macias denied having pointed the gun at the complainants, he asked Macias why four people would give sworn statements that Macias was the person who pointed it at them, and that Macias could not give him answer. The officer further testified that Macias then decided he no longer wanted to speak with the officer. Defense counsel did not object to that line of questioning, but pursued the following line of questioning on cross-examination:
Q. Now, relative to your question to Mr. Macias as to why four people would give written statements that he had pointed the shotgun, you said that he could not give an answer. Is that what you – that’s what you just previously testified to a few minutes ago; is that correct?
A. Yes, sir.
Q. Well, isn’t it more accurate or more true and correct that he just didn’t say anything; is that correct?
A. No, sir. What I remember, he just could not give me an answer.
Q. Well, what do you mean, couldn’t? When you asked the question, did he say anything?
A. No.
Q. All right. So, when you say – when you made the question to him of well, why did four people make written statements that you were pointing the shotgun, in response to that or after you made the question, the defendant, Rolando Macias, he just simply didn’t say anything, right?
A. Not – no, sir, he didn’t give me an answer.
Q. And he did not – he did not utter any words; is that correct?
A. Correct.
Q. In fact, he was silent; is that right?
A. Yes, sir.
Q. In fact, after that he told you that he wanted an attorney; is that right?
A. A few sentences later.
Q. Okay. All right. By the way, you don’t speak Spanish, do you?
A. No sir, I don’t.
Q. All right. And after those few sentences, then the interview was terminated; is that correct?
A. Yes, sir.
The next exchange, which Macias claims as grounds for mistrial, occurred during the State’s redirect examination:
Q. Now, [Officer], when you confronted [Macias] about the four people who gave statements saying that he was the man holding the shotgun on those four people, Defendant’s counsel alluded that he didn’t say anything. How did you receive the fact that he didn’t say anything?
A. I’m going to say normally when somebody has that type of response, they can’t come up with an answer.
Q. And during the conversation that you had with the Defendant, did he – at any point during that time, did you seem to have a failure to communicate? Did he ever say he didn’t understand what you were saying?
A. Not that I felt.
Q. Did he ever say that he was trying to protect anyone else on that night?
A. Not to me, no, sir.
Q. Never said to you that he was pulling a shotgun to protect Miguel, the codefendant, to you?
At this juncture, defense counsel objected “to these questions” on the ground that they constituted a comment on Macias’s right to remain silent. The trial court sustained the objection as to the unanswered question and agreed to tell the jury to disregard the question, but denied Macias’s motion for mistrial.
A comment on the defendant’s post-arrest silence violates the defendant’s rights under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). When a defendant takes the stand, however, he is subject to cross-examination and impeachment like any other witness, except as limited by any overriding constitutional or statutory prohibitions. Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985); see also Salazar v. State, 131 S.W.3d 210, 214 (Tex. App.—Fort Worth 2004, pet. ref’d) (“The State cannot improperly comment upon a defendant’s post-arrest silence when he did not remain silent.”); Bell v. State, 867 S.W.2d 958, 962 (Tex. App.—Waco 1994, no pet.) (holding that defendant opened door to impeachment on his post-arrest silence by attempting to shore up his defensive strategy through questions about his post-arrest statements to police).
Here, we need not decide whether the testimony at issue constitutes proper impeachment or improper comment on post-arrest silence because the defense waived any error by failing to timely object. A defendant may waive a complaint of comment on post-arrest silence by failing to timely and properly object. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); see Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after complained-of ruling); Salazar, 131 S.W.3d at 214 (same). The reporter’s record excerpts demonstrate that, before the defense objected, a substantial amount of testimony, including some elicited by the defense, dealt with the nature of Macias’s lack of response to the officer’s question.
Moreover, an instruction to the jury to disregard generally suffices to cure any harm from an improper comment on appellant’s post-arrest silence. Dinkins, 894 S.W.2d at 355. The trial court agreed to tell the jury to disregard the objected-to question as requested by the defense. Considering the amount of testimony on the issue already before the jury and the trial court’s agreement to instruct the jury to disregard the question, the trial court did not abuse its discretion in denying Macias’s motion for mistrial.
C. Motion for continuance
In his next issue, Macias complains that the trial court abused its discretion by refusing to continue his trial until after Salas had been tried so that Salas would not be required to waive his right to remain silent to provide testimony exculpating Macias at Macias’s trial.
Macias filed two motions for continuance. The first claims that he required a continuance to obtain further discovery from the State, and observes that defense counsel had not located Salas’s divorce decree, which, according to the motion, indicated that the property taken during the incident was community property and, accordingly, that no theft occurred. The second motion, filed approximately one month later, seeks to consolidate Macias’s case with Salas’s case so that Salas could provide testimony in support of Macias’s defense. The motion observes that Salas’s attorney had advised him not to testify so as to protect his Fifth Amendment right against self-incrimination. The motion asserts that newly found evidence constitutes the basis for the continuance request, but does not identify that evidence. The second motion, also unsworn, is accompanied by an affidavit executed by Salas. In it, Salas echoes Macias’s version of the incident, declaring that Salas became frightened when Urvano and Kenny approached him and called to Macias to help him by getting the gun, and that Macias got the gun and told them to back off and not hurt Salas.
During trial, Macias called Salas to the stand to make a bill of exception. Salas refused to answer, invoking his Fifth Amendment right against self-incrimination.[1] Defense counsel made a proffer of the questions he would direct toward and responses he anticipated from Salas, as well as a copy of the affidavit from Salas previously filed with Macias’s motion to consolidate.
The trial court did not abuse its discretion in denying Macias’s motion for continuance. First, Macias’s motion for continuance requests that his case be consolidated with Salas’s, not that Salas be tried first. Second, even assuming that Salas would be tried before Macias, if Salas were convicted he would not be free to testify without the fear of self-incrimination until he had exhausted all rights to judicial review. Third, because Salas affirmatively invoked his Fifth Amendment rights, “it would be mere speculation to conclude that the proposed testimony by the codefendant would have been of such weight and believability as to influence the decision of the jury.” Williams v. State, 625 S.W.2d 769, 771 (Tex. App.—Houston [14th Dist.] 1981, pet. ref’d). At best, to the extent Salas’s affidavit is any indication to what he would testify, his testimony would have been cumulative of Macias’s. Accordingly, we overrule Macias’s second issue.
II. Factual Sufficiency Challenge
In his final issue, Macias contends that the evidence is factually insufficient to support the jury’s findings of guilt on the three counts of aggravated robbery. In conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). The verdict will stand unless (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) it is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude that the evidence is factually insufficient simply because we disagree with the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Further, the fact finder, as the sole determiner of a witness’s credibility, may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).
In challenging the factual sufficiency of the evidence of aggravated robbery, Macias specifically attacks the sufficiency of the evidence supporting the jury’s findings that he “committed theft of property” and “threatened or placed the complainant[s] in fear of imminent bodily injury or death.” See Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2), (3) (Vernon 1994).
Macias acknowledges that the three complainants all testified that he pulled a shotgun on them in the course of taking their property from a shed. He nevertheless claims that his version of events—that he believed Salas owned the property they took from the shed, and that he was acting in Salas’s defense after Lillian’s older son had threatened him—is “entirely reasonable and self-consistent.”
Macias’s testimony at trial and prior statements to law enforcement demonstrate otherwise. They contain inconsistencies about several issues, including (1) at what time he and Salas got off work and began driving around; (2) whether a third co-worker had been in the car earlier in the evening; (3) the location where they picked up Salas’s sedan; (3) whether he drank any beer; and (4) whether he pointed the gun at the Jaramillos. In contrast, as Macias concedes, the complainants all testified to essentially the same version of facts, including that Macias and Salas broke into the freestanding shed, and Macias pulled a gun out when the residents discovered them taking items from the shed. The jury was free to discredit Macias’s testimony and believe the testimony of the complainants, which constitutes factually sufficient evidence to support the verdict.
Conclusion
We conclude that the trial court did not abuse its discretion in denying Macias’s motions for mistrial and continuance. We also conclude that the evidence is factually sufficient to support the jury’s findings of guilt on the three counts of aggravated robbery. Finding no error, we affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
[1] “A defendant may not require a codefendant to testify if she has indicated she will assert her privilege against self-incrimination under the Fifth Amendment to the United States Constitution.” Hartson v. State, 59 S.W.3d 780, 783 (Tex. App.—Texarkana 2001, no pet.)